Civil Procedure Midterm

If a defendant waives service of process under Rule 4,that defendant has ________days in which to file a response, if the defendant resides within the United States.

60

Define cause of action

A cause of action is a legal basis for a lawsuit based on the facts of the case and applicable law.

Which of the following skills are needed by paralegals?

Ability to communicate orally and in writing Organizational and analytical skills Computer literacy *All of the Above

Which of the following cannot be done by a paralegal?

Asking questions at a deposition

________ evidence is evidence that is not based on personal observation but that does lead a judge or jury to infer a particular conclusion about a disputed fact.

Circumstantial

Litigation formally begins when a plaintiff files a written document, known as a/an ________, in court.

Complaint

The process of civil litigation formally begins when one party files a/an __________ .

Complaint

In a federal case, trials generally occur in

the district court

Difference between exclusive jurisdiction and concurrent jurisdiction

Concurrent jurisdiction has multiple courts with the jurisdiction. Exclusive jurisdiction is where the court only has jurisdiction over the case

What are the differences between civil and criminal cases

Criminal cases are based on substantive criminal laws whereas civil cases are based on substantive civil laws. In a criminal trial defendants usually appear in court for arraignments and other hearings, whereas in civil cases pretrial proceedings are typically handled by the attorney and the parties make no appearance until trial.

Describe the three types of cases that can be brought in federal court

Criminal, civil, and bankruptcy

List the factors that are analyzed when determining proper jurisdiction

Determined where the location of the act/offense took place, the home state's of the parties, the amount of damages, the offense committed, and the interest of the court.

________ evidence is evidence that a witness personally observed and which, if believed, directly establishes a fact.

Direct

Trial courts in the federal system are known as __________ courts.

District

(T or F) An attorney can commingle his own personal assets with property belonging to a client as long as the attorney keeps accurate records.

False

(T or F) Arbitration is a form of settlement.

False

(T or F) Case law has little, if any, relevance to the law of civil procedure.

False

(T or F) Ogawa and Robles are probably handling this case on a contingent fee basis.

False

(T or F) The doctrine known as laches requires plaintiffs to present written claims to defendants prior to filing lawsuits.

False

(T or F) Trial courts within state court systems are all referred to as district courts.

False

(T or F) Within the federal court system, a separate appellate court district exists for each of the 50 states.

False

Berkshire , a paralegal with the firm of Schneider & Castillo, has been assigned to work on the Saldivar case, a case where Saldivar is claiming damages for personal injuries resulting from exposure to asbestos allegedly contracted when Saldivar worked on premises owned by Greenwood Properties and leased to Saldivar's employer. The claim is against Greenwood Properties. The company is represented by counsel. (T or F) Berkshire should send a letter on behalf of Schneider & Castillo directly to Greenwood Properties, requesting the names and addresses of all parties who leased the premises for the past 50 years.

False

Paralegals cannot give _______ advice to parties.

Legal

Describe the role of legal personnel in the civil litigation process.

Litigation attorneys and their paralegals often spend considerable time gathering and analyzing the facts as well as researching the law . They will prepare formal legal documents and file them with the court .

What are five tasks performed by litigation paralegals?

Maintaining firm's calendaring system Organizing client files Interviewing clients Gathering evidence Drafting pleadings

What is the difference between personal jurisdiction and in rem jurisdiction?

Personal jurisdiction over any person or business that resides in a certain geographic area. In rem jurisdiction is jurisdiction over property that is located within its boundaries

The power that a court has to hear a particular case is known as jurisdiction.

Subject Matter

What is venue?

The geographic district in which a legal action is tried and from which the jury is selected.

What are the steps in the litigation process?

The process begins when the plaintiff files a compliant, the defendant is served with a copy of the complaint and is given the opportunity to contest the lawsuit. If the defendant challenges the factual basis of the lawsuit, they file an answer. If both the plaintiff and defendant filed correctly, litigation begins with discovery. Then, prior to trial, both parties can files motions. The trial then occurs and the judgment is entered after the trial. Any side can file for appeal after the judgment has been entered.

How is the federal court system structured?

Trial court, circuit court, and Supreme Court

(T or F) A cross-claim is generally allowed when a claim by one defendant against another named defendant arises out of the same transaction or occurrence that is the subject matter of the complaint.

True

(T or F) If Saldivar gives Berkshire the names of individuals who worked with him on the Greenwood premises, Berkshire should contact these individuals by phone to determine if they have any relevant information regarding the Saldivar case.

True

(T or F) If the accident happened in Alabama, the state courts of Alabama would have jurisdiction, even if defendant is not a citizen of that state.

True

(T or F) In some instances, the first pleading filed in a lawsuit is called a petition.

True

(T or F) Litigation paralegals often rely on form books and forms files.

True

(T or F) Pleadings are filed in a trial court.

True

When does a court have personal jurisdiction over a party to a lawsuit?

Usually its when the defendant lives in that state

A tickler system is

a calendaring system

A five-year-old child cannot maintain a lawsuit in hisown name because ________.

a child lacks capacity to sue

A default judgment against a defendant can be set aside a complaint is _____.

a general denial

If a complaint in a federal court action is vague and ambiguous, the defendant should file .

a motion for a more definite statement

Subject matter jurisdiction in federal court can be challenged by

a motion to dismiss

Factual disputes are generally resolved in _______ .

a trial court

If a defendant challenges the facts of a complaint, the defendant should file a/an ________.

answer

The part of a complaint or petition that identifies the parties to the lawsuit is known as the ________.

caption

If an answer is served by mail on plaintiff's attorney, service should be evidenced by a/an ________.

certificate of mailing

In lieu of statutes of limitations, lawsuits against governmental entities must meet time requirements found in ________ statutes.

claim

When the number of potential plaintiffs in an action becomes too numerous to be practically joined and named, a/an ________ can result.

class action

If an attorney decides not to take a case, that attorney should always ________.

clearly communicat e that fact to the concerned individual

The role of the appellate court includes

determinin g if any legal errors occurred at the trial level

Which of the following is not an exception to the hearsay rule?

electronically stored information

(T or F) A copy of the answer must be personally served on the plaintiff

false

(T or F) All allegations in a counterclaim, cross-claim, or third-party complaint are deemed denied and need not be responded to.

false

(T or F) Authorizations to obtain medical and employment information regarding the client should be signed and dated by the client at the initial client interview as standard procedure.

false

(T or F) In qualifying an expert, the court looks solely at education and skill.

false

(T or F) Paralegals should never give factual information to clients, as it may violate ethical rules.

false

(T or F) When Berkshire has any need to communicate with Saldivar, he should identify himself as a "member of the firm of Schneider & Castillo"; he should never refer to himself as a paralegal.

false

Minors and incompetents must ha v e a/an ________ appointed in order to pursue a lawsuit.

guardian ad litem

A plaintiff is usually allowed to amend a complaint ____.

if all other parties have stipulated in writing that the complaint can be amended

Technical rules regarding form and content of pleadings are often found in

local rules of court

In a personal injury case, a client might be asked to keep a/an ________ , a document in which the client keeps track of medical treatment, daily health complaints, amounts of medication, and related medical information.

medical diary

Both NALA and NFPA have developed ethical guidelines to govern

paralegal

Jaworsky, the driver of a vehicle, and Bigelow, a passenger in that car, were both injured in an automobile accident caused by the negligence of Thornton, the operator of another vehicle. Jaworsky and Bigelow are both allowed to sue Thornton in the same complaint because of the law regarding ________.

permissive joinder

To request a hearing in the Supreme Court, a party generally files a

petition for writ of certiorari

Laws containing the methods used to enforce our rights or to obtain redress for the violation of our rights are known as

procedural laws

Before an expert is allowed to testify in a court proceeding, he or she must be ________by the court to do so.

qualified

Written fee agreements are often called __________ agreements.

retainer

The document issued by the court clerk at the time of filing a complaint is known as a/an

summons

A contingent fee arrangement means that ________.

the attorney will take a percentage of the recovery as the fee

What are the functions of trial courts and courts of appeals in the litigation process?

trial courts are the first courts to hear cases. They determine the results of the case, guilty or not. Then the courts of appeals are the second to hear a case and determine whether the first court made the right decision following proper procedural law.

(T or F) In federal court, a stipulation extending time in which to respond to a complaint must be approved by the court.

true

(T or F) When parties in a lawsuit are required tobe joined, they are sometimes referred to as indispensable parties.

true

An express statement under penalty of perjury that the contents of a document are true is known as a/an

verification